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What effects do laws and surveillance have on the exercise of freedoms online?

Today, the Berkman Center welcomed Jon Penney (@jon_penney), who is finishing his D.Phil at the University of Oxford, to talk about his dissertation research on chilling effects. Jon is a lawyer, Oxford researcher, and a research fellow at the the University of Toronto's Citizen Lab.

What is a chilling effect? The idea, theorized in a US context by Schauer in 1978, was that laws might have an effect on legal, protected, and desired activities. Judges have been skeptical about this idea. In Laird v Tatum, judges claimed that chilling effects were not a 'cognizable' injury. In response to recent NSA cases, chilling effects were dismissed as too speculative. Scholars agree. Kendrick argued that chilling effects have a "flimsy" empirical basis. Many open questions remain, including the magnitude of chilling effects and their reach. In his dissertation, Jon set out to answer some of those questions.

Will be talking about the Alice v. CLS Bank decision. So can you patent software? Short answer: yes.

In the US, the power to issue patents comes from the Constitution, and is meant to encourage innovation. Patents involve a trade: you get a monopoly on making something for a limited amount of time, but you have to tell us how you made it. It's common wisdom that patents are good, but Ed asks if that really holds up for software.

He argues that being secretive over ideas in tech is wasteful and that the main benefit of software patents is to allow people to talk about their ideas without the need for secrecy.

Software is usually patented as a "process" or a "machine." However, laws of nature, natural phenomena, and abstract ideas can't be patented. When you patent the basic building blocks of an industry, you in effect own that industry. Software patents go against the long-held ideals of sharing in open source.

The video is not the only thing lost, however. Along with access to the video, YouTube disables access to all accompanying information: the title, tags, description, comments, related videos, response videos, ratings, and number of views. While S.512(c)(1) of the DMCA certainly compels the wise service provider to disable the allegedly infringing video, they could do so without ripping a node out of the network like a bandage from a hairy knee!

Imagine instead that the pages for disabled videos were rendered like this mockup: